To no one's great surprise, a group of Republican lawmakers today filed HB 520, a bill aimed at reversing a vital correction to the open records law by the Kentucky Supreme Court in Shively Police Department v Courier Journal -- a
"watershed" opinion not even six months old.

https://apps.legislature.ky.gov/record/25rs/hb520.html

https://law.justia.com/cases/kentucky/supreme-court/2024/2023-sc-0033-d…

https://www.courier-journal.com/story/news/local/2024/09/27/kentucky-su…

Reps. Chris Fugate, John Blanton, Tony Hampton, Jason Nemes, and Wade Williams are the sponsors of this expected but unwelcomed legislative "fix" to the Supreme Court's corrective action in the Shively case.

They propose an amendment to KRS 61.878(1)(h) -- the "law enforcement exception" to the open records law -- that currently exempts from public inspection:

"Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication."

If enacted as filed today, HB 520 will provide:

"law enforcement records shall be exempt from public inspection if the disclosure of the information could pose an articulable risk of harm to the law enforcement agency or its investigtion by revealing the identity of informants or witnesses not otherwise known."

The substitution of a single word -- "could" for "would" -- will mark a dramatic reversal of two decades of interpretation of KRS 61.878(1)(h) that was reaffirmed in Shively.

(In Shively, the Court laid to rest the long
and wrongly held belief that an entirely separate statute -- KRS 17.150(2) -- operated as a companion to KRS 61.878(1)(h). Requiring no showing of a risk of harm, KRS 17.150(2) alternated for KRS 61.878(1)(h) when a law enforcement agency was unable to establish a concrete risk of harm from premature disclosure of records requested in an open investigation. HB 520, in its current form, is silent on 17.150(2).)

In October 2024, the Supreme Court ruled that the Shively Police Department violated the open records law in withholding records in an open investigation/prosecution because it failed to identify a concrete risk of harm amounting to "something more than a hypothetical or speculative concern.”

The lax standard employed by law enforcement agencies in invoking KRS 61.878(1)(h) had, through the years, yielded a parade of hypothetical or speculative harms the most common of which was “tainting the jury pool"and “influencing witness memories."

Soon after the Supreme Court rendered its opinion in the Shively case, law enforcement agencies realized the challenge that lay before them. No longer could they casually, and with little to no effort, invoke KRS 17.150(2) to deny access to all records in an open investigation. Nor could they successfully invoke KRS 61.878(1)(h) with a speculative showing of harm "that would seemingly apply universally to any criminal investigation turned felony prosecution—that the requested records could potentially compromise the recollections of some unnamed or unknown witnesses and that the release of the records might taint a future grand jury proceeding."

With the change of a single word -- "would" to "could" -- HB 520 takes us out of the world of actual, concrete harm and returns us to the world of speculative, hypothetical harm as the measure by which we assess the propriety of a law enforcement agency's reliance on the open records law enforcement exception.

“Would” expresses certainty. “Could” expresses possibility. HB 520’s ostensibly minor change from “would” to “could” will make an enormous difference in the availability of law enforcement records in an open investigation.

No one has ever suggested an absolute right to all records in an open investigation. The law enforcement exception authorizes nondisclosure if disclosure “would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action.” But proof of a risk of harm beyond pure speculation divests the public of its right to know what law enforcement is doing.

Lawmakers recognized this tension in the period leading up to the 1976 enactment of the open records law and struck the appropriate balance. HB 520 ignores the fact that “Secret police activity without some overriding justification is repugnant to the American system of government.” OAG 80-144.

https://kyopengov.org/law/ag/1980/oag-80-144

Consider the Louisville Metro Police Department’s abuses in the Explorer case, and the litany of police abuses exposed by the Department of Justice.

https://www.courier-journal.com/story/news/local/breonna-taylor/2023/03…

https://www.wdrb.com/in-depth/wdrb-sues-lmpd-for-withholding-records-ab…

https://kyopengov.org/blog/shively-police-department-requests-supreme-c…

From a brief period of sunlight under the Shively case, we will return to the shadows under HB 520, if it is enacted.